Kyocera Solar, Inc. et al v. United States International Trade Commission

Slip Op. 15-136
UNITED STATES COURT OF INTERNATIONAL TRADE
KYOCERA SOLAR, INC. AND
KYOCERA MEXICANA S.A. DE C.V.,
Plaintiff,
v.
UNITED STATES,
Defendant,
AND
SOLARWORLD AMERICAS, INC.,
Defendant-Intervenor.
Before: 	Nicholas Tsoucalas,
Senior Judge
Court No. 15-00084
PUBLIC VERSION
OPINION
[Plaintiff’s Motion for Judgment Upon the Agency Record is denied.
The 	International 	Trade 	Commission’s 	determination 	and 	decision
are affirmed.]
Dated:December 7, 2015
J. Kevin Horgan and Alexandra H. Salzman, DeKieffer & Horgan, PLLC,
of Washington, DC, for Plaintiff.
Mary Jane Alves, Office of the General Counsel, U.S. International
Trade 	Commission, 	of 	Washington, 	DC, 	for 	Defendant. 	With 	her 	on
the 	brief 	were 	Andrea 	C. 	Casson, 	Assistant 	General 	Counsel 	for
Litigation, and Dominic L. Bianchi, General Counsel.
Timothy C. Brightbill, Laura El-Sabaawi, Usha Neelakantan, Wiley
Rein, LLP, of Washington DC, for Defendant-Intervenor.
Tsoucalas, 	Senior 	Judge: 	This 	case 	comes 	before 	the 	Court
upon Plaintiff’s, Kyocera Solar Inc. (“KSI”) and Kyocera Mexicana
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S.A. DE C.V. (“KMX”) (collectively “Kyocera”), Motion for Judgment
upon 	the 	Agency 	Record 	challenging 	the 	International 	Trade
Commission’s 	(“ITC” 	or 	“Commission”) 	decision 	in 	Certain
Crystalline 	Silicon 	Photovoltaic 	Products 	From 	China 	and 	Taiwan,
80 Fed. Reg. 7,495 (ITC Feb. 10, 2015) (“ITC Injury Determination”)
and 	Certain 	Crystalline 	Silicon 	Photovoltaic 	Products 	from 	China
and Taiwan, USITC Pub. 4519 Inv. Nos. 701-TA-511 and 731-TA-1246-
1247 	(Feb. 	2015) 	(“ITC 	Decision”). 	Defendant 	ITC 	and 	Defendant-
Intervenor 	Solarworld 	Americas 	Inc. 	(“Solarworld”) 	oppose
Plaintiff’s 	motion. 	For 	the 	following 	reasons, 	the 	court 	denies
the 	Plaintiff’s 	motion 	and 	affirms 	the 	ITC 	Injury 	Determination
and ITC Decision.
BACKGROUND
Kyocera 	is 	a 	producer 	and 	supplier 	of 	solar 	energy
modules. 	Mem. in Supp. Of Mot. for J. Upon the Agency R. (“Pl.’s
Br.”) 	at 	2, 	July 	13, 	2015, 	ECF 	No. 	23. 	Kyocera 	International
(“KII”) 	was 	established 	in 	1969 	as 	a 	holding 	company 	for 	Kyocera
Corporation’s North American group of companies. 	Id. 	KSI is KII’s
North 	American 	solar 	products 	subsidiary 	headquartered 	in
Scottsdale, Arizona. 	Id.
KMX 	is 	a 	maquiladora 	manufacturing 	plant 	located 	in
Tijuana, 	Mexico. 	Id. 	In 	2004, 	KMX 	began 	producing 	solar 	modules
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in Mexico for KSI. Id. In 2010, KMX began incorporating solar cells
produced in Taiwan into some of the solar modules KMX produced in
Mexico. 	Id. 	The 	Taiwanese 	solar 	cells 	were 	connected 	in 	Mexico
to form solar modules. 	Id.
On 	December 	31, 	2013, 	Solarworld 	filed 	a 	petition
alleging 	that 	certain 	crystalline 	silicon 	photovoltaic 	(“CSPV”)
products1 	imported 	from 	Taiwan 	were 	being 	dumped 	in 	the 	United
States. 	Pl.’s 	Br. 	at 	3. 	The 	petition 	also 	alleged 	that 	CSPV
products 	imported 	from 	China 	were 	being 	dumped 	and 	unfairly
subsidized. 	Id.
The 	Department 	of 	Commerce 	(“Commerce”) 	initiated 	an
antidumping 	investigation 	of 	CSPV 	products 	from 	Taiwan 	and 	China
on 	January 	29, 	2014. 	Certain 	Crystalline 	Silicon 	Photovoltaic
Products 	From 	the 	People’s 	Republic 	of 	China 	and 	Taiwan, 	79 	Fed.
Reg. 	4,661 	(Dep’t 	Commerce 	Jan. 	29, 	2014) 	(Initiation 	of
Antidumping Duty Investigations). 	Commerce described the products
subject to investigation in the following manner:
The 	merchandise 	covered 	by 	these
investigations 	is 	crystalline 	silicon
photovoltaic 	cells, 	and 	modules, 	laminates
and/or 	panels 	consisting 	of 	crystalline
silicon 	photovoltaic 	cells, 	whether 	or 	not
partially 	or 	fully 	assembled 	into 	other
products, 	including 	building 	integrated
materials. 	For 	purposes 	of 	these
1 CSPV products include solar cells and modules.
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investigations, 	subject 	merchandise 	also
includes 	modules, 	laminates 	and/or 	panels
assembled in the subject country consisting of
crystalline 	silicon 	photovoltaic 	cells 	that
are completed or partially manufactured within
a 	customs 	territory 	other 	than 	that 	subject
country, using ingots that are manufactured in
the 	subject 	country, 	wafers 	that 	are
manufactured in the subject country, or cells
where the manufacturing process begins in the
subject 	country 	and 	is 	completed 	in 	a 	non-
subject country . . . .
Also 	excluded 	from 	the 	scope 	of 	these
investigations are any products covered by the
existing 	antidumping 	and 	countervailing 	duty
orders 	on 	crystalline 	silicon 	photovoltaic
cells, whether or not assembled into modules,
from the People’s Republic of China.
Id. at 4,667. 	The scope description included modules produced in
Taiwan using cells produced elsewhere, but it did not include solar
modules produced in non-subject countries such as Mexico. 	Id.
On 	September 	15, 	2014, 	Kyocera 	filed 	a 	request 	asking
Commerce to exclude solar modules produced in Mexico. 	Request for
Scope Determination Kyocera Conf. App. Attach. E, Sept. 15, 2014,
ECF No. 28. 	Nevertheless, on December 23, 2014, Commerce decided
to include solar modules produced in Mexico using Taiwanese cells
within the scope of its investigation: “[m]odules, laminates, and
panels 	produced 	in 	a 	third-country 	from 	cells 	produced 	in 	Taiwan
are 	covered 	by 	this 	investigation.” 	Certain 	Crystalline 	Silicon
Photovoltaic 	Products 	From 	Taiwan, 	79 	Fed. 	Reg. 	76,966, 	76,968
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(Dep’t 	Commerce 	Dec. 	23, 	2014) 	(Final 	Determination 	of 	Sales 	at
Less 	Than 	Fair 	Value). 	Using 	this 	scope 	definition 	provided 	by
Commerce, the ITC determined that an industry in the United States
is 	materially 	injured 	by 	reason 	of 	imports 	of 	CSPV 	products 	from
Taiwan. ITC Injury Determination, 80 Fed. Reg. at 7,495.
Kyocera 	subsequently 	filed 	this 	action 	disputing 	the
ITC’s affirmative injury determination. 	Compl. at ¶¶ 16-25, Mar.
20, 2015, ECF No. 6.
JURISDICTION AND STANDARD OF REVIEW
The Court has jurisdiction over this action pursuant to
section 201 of the Customs Courts Act of 1980, 28 U.S.C. § 1581(c)
(2012), and Sections 	516A(a)(2)(A)(i)(II) and 516A(a)(2)(B)(i) of
the Tariff Act of 1930, 19 U.S.C. § 1516a(a)(2)(A)(i)(II) (2012),2
19 U.S.C. § 1516a(a)(2)(B)(i).
In an action challenging a final injury determination by
the ITC, the Court shall hold unlawful any determination found to
be unsupported by substantial evidence on the record, or otherwise
not in accordance with law. 	19 U.S.C. § 1516a(b)(l)(B)(i).
Substantial evidence means “more than a mere scintilla”
of 	“such 	relevant 	evidence 	as 	a 	reasonable 	mind 	might 	accept 	as
2 Further citations to the Tariff Act of 1930 are to the relevant
portions of Title 19 of the U.S. Code, 2012 edition, and all
applicable amendments thereto, unless otherwise noted.
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adequate to support a conclusion.” Universal Camera Corp. v. NLRB,
340 	U.S. 	474, 	477 	(1951)(quoting 	Consol. 	Edison 	Co. 	v. 	NLRB, 	305
U.S. 	197, 	229 	(1938)). 	To 	determine 	if 	substantial 	evidence
exists, the court reviews the record as a whole. Id. at 488. 	“The
substantiality of evidence must take into account whatever in the
record fairly detracts from its weight.” 	Id. 	The mere fact that
it 	may 	be 	possible 	to 	draw 	two 	inconsistent 	conclusions 	from 	the
record does not prevent the determination from being supported by
substantial 	evidence. 	Am. 	Silicon 	Techs. 	v. 	United 	States, 	261
F.3d 	1371, 	1376 	(Fed. 	Cir. 	2001); 	see 	also 	Consolo 	v. 	Fed. 	Mar.
Comm'n, 383 U.S. 607, 620 (1966).
Under the first step of Chevron U.S.A. Inc. v. Nat. Res.
Def. Council Inc., 467 U.S. 837, 842 (1984), when a court reviews
an agency’s construction of the statute which it administers, the
first 	question 	is 	whether 	Congress 	has 	directly 	spoken 	to 	the
precise 	question 	at 	issue. 	If 	the 	intent 	of 	Congress 	is 	clear,
that 	is 	the 	end 	of 	the 	matter; 	for 	the 	court, 	as 	well 	as 	the
agency, must give effect to the unambiguously expressed intent of
Congress. 	Id. 	at 	842-43. 	“To 	ascertain 	. 	. 	. 	Congress[‘] 	. 	. 	.
intention 	. 	. 	. 	[the 	Court] 	employ[s] 	the 	‘traditional 	tools 	of
statutory 	construction.’” 	Timex 	V.I., 	Inc. 	v. 	United 	States, 	157
F.3d 	879, 	882 	(Fed. 	Cir. 	1998) 	(citing 	Chevron, 	467 	U.S. 	at 	843
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n.9.) “The first and foremost ‘tool’ . . . is the statute's text,
giving 	it 	its 	plain 	meaning 	. 	. 	. 	[I]f 	the 	text 	answers 	the
question, that is the end of the matter.” 	Id. (citing VE Holding
Corp. v. Johnson Gas Appliance Co., 917 F.2d 1574, 1579 (Fed. Cir.
1990)). 	“Beyond 	the 	statute's 	text, 	those 	‘tools’ 	include 	the
statute’s 	structure, 	canons 	of 	statutory 	construction, 	and
legislative history.” 	Id. 	If the statute is silent or ambiguous
with respect to the specific issue, the question for the court is
whether the agency’s answer is based on a permissible construction
of the statute. 	Chevron, 467 U.S. at 843. 	“‘To survive judicial
scrutiny, an agency's construction need not be the only reasonable
interpretation 	or 	even 	the 	most 	reasonable 	interpretation.’”
Usinor 	v. 	United 	States, 	26 	CIT 	767, 	771 	(2002) 	(not 	reported 	in
F.Supp.2d) (citing Koyo Seiko Co. v. United States, 36 F.3d 1565,
1570 	(Fed. 	Cir. 	1994). 	“Thus, 	when 	faced 	with 	more 	than 	one
reasonable 	statutory 	interpretation, 	‘a 	court 	must 	defer 	to 	an
agency's 	reasonable 	interpretation 	. 	. 	. 	even 	if 	the 	court 	might
have 	preferred 	another.’” 	U.S. 	Steel 	Grp. 	v. 	United 	States, 	225
F.3d 	1284, 	1287 	(Fed. 	Cir. 	2000) 	(quoting 	NSK 	Ltd. 	v. 	United
States, 115 F.3d 965, 973 (Fed. Cir. 1997)).
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1. Whether Commerce improperly used its authority to expand the
geographic reach of the antidumping order.
Kyocera 	argues 	that 	Commerce 	improperly 	used 	its
authority to expand the geographic reach of the antidumping order
by 	defining 	the 	scope 	of 	merchandise 	covered 	to 	include 	modules
produced 	in 	Mexico 	using 	Taiwanese 	cells. 	Pl.’s 	Br. 	at 	10.
Kyocera 	maintains 	that 	Commerce 	could 	have 	conducted 	a
circumvention 	inquiry 	under 	19 	U.S.C. 	§ 	1677j(b) 	and 	19 	C.F.R. 	§
351.225(h) (2015), and consulted with the ITC regarding the impact
of 	a 	circumvention 	finding 	on 	the 	injury 	analysis. 	Id. 	The 	court
declines 	to 	address 	this 	argument, 	because 	it 	is 	not 	properly
before the court. 	This case concerns the Commission’s affirmative
material 	injury 	determination 	regarding 	CSPV 	from 	Taiwan. 	ITC
Injury 	Determination, 	80 	Fed. 	Reg. 	at 	7,495; 	ITC 	Decision.
Commerce’s determinations are the subject of separate litigation.
Thus, the Court will not address Commerce’s determinations here.
2. The ITC’s Negligibility Analysis
Under the statute, if the ITC determines that imports of
the 	subject 	merchandise 	are 	negligible, 	its 	investigation 	into
whether 	there 	is 	injury 	shall 	be 	terminated. 	19 	U.S.C. 	§
1673d(b)(1). 	Imports from a country are considered negligible if
such 	imports 	account 	for 	less 	than 	3% 	of 	the 	volume 	of 	all 	such
merchandise imported into the U.S. in the most recent twelve month
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period 	for 	which 	data 	are 	available 	that 	precedes 	the 	filing 	of
the 	petition 	or 	the 	initiation 	of 	the 	investigation. 	Id. 	§
1677(24)(A)(i). 	However, 	imports 	are 	not 	negligible 	if 	the
aggregate volume of imports of the merchandise from all countries
with 	respect 	to 	which 	investigations 	were 	initiated 	on 	the 	same
day exceeds 7% of the volume of all such merchandise imported into
the 	U.S. 	during 	the 	applicable 	twelve 	month 	period. 	Id. 	§
1677(24)(A)(ii).
Kyocera 	argues 	that 	the 	ITC’s 	injury 	determination 	was
neither 	supported 	by 	substantial 	evidence 	nor 	in 	accordance 	with
law, because imports of CSPV from Mexico were negligible. 	Pl.’s
Br. at 11. Kyocera appears to acknowledge that the statute centers
the 	negligibility 	analysis 	on 	the 	imports 	of 	the 	subject
merchandise with respect to which Commerce has made an affirmative
determination. Id. at 15. 	Kyocera maintains that Commerce made an
affirmative 	determination 	with 	respect 	to 	solar 	products 	from
Mexico when it deemed Mexican products to be subject merchandise.
Id.
Kyocera points out that the definition of negligibility
is 	not 	limited 	to 	countries 	named 	in 	the 	petition. 	Id.
Additionally, 	Kyocera 	questions 	the 	Commission’s 	deference 	to
Commerce’s scope determination:
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[a]llowing the Commission to wash its hands of
the 	matter 	by 	deferring 	to 	the 	Commerce
Department’s 	unlawful 	scope 	determination
creates a perfect Catch 22. If the petitioner
had 	filed 	a 	dumping 	petition 	against 	solar
products 	from 	Mexico 	as 	it 	could 	have 	done,
the petition would have resulted in a negative
injury 	finding 	. 	. 	. 	Likewise, 	if 	the
petitioner 	had 	requested 	a 	circumvention
inquiry 	with 	respect 	to 	KSI’s 	solar 	products
from 	Mexico, 	there 	would 	not 	have 	been 	a
finding 	of 	circumvention 	because 	KSI 	had
established its Mexican production facilities
long before any antidumping cases were filed,
and 	also 	because 	the 	Commission 	would 	have
been asked to make an assessment of the [sic]
whether such products were a cause of injury.
Id. at 15-16. 	Kyocera’s argument is flawed. 	Kyocera ignores the
fact that Commerce’s investigation defines the scope of the ITC’s
analysis. 	19 	U.S.C. 	§ 	1673d 	(a)(1), 	(b)(1); 	See 	USEC 	Inc. 	v.
United 	States, 	34 	Fed.Appx. 	725, 	730 	(Fed. 	Cir. 	2002) 	(“The
merchandise that is subject to the ITC's analysis is the ‘subject
merchandise’ 	as 	to 	which 	Commerce 	has 	initiated 	an 	antidumping
investigation.”) 	Congress’ 	intent 	is 	clear 	in 	this 	regard. 	See
Chevron, 	467 	U.S. 	at 	842-43. 	Here, 	Commerce 	determined 	that 	“the
solar modules produced by Kyocera in Mexico using Taiwanese cells
are 	considered 	Taiwanese 	in 	origin, 	and 	are 	within 	the 	scope 	of
this 	[Taiwanese] 	investigation.” 	Certain 	Crystalline 	Silicon
Photovoltaic Products from Taiwan: Issues and Decision Memorandum
for 	the 	Final 	Determination 	of 	Sales 	at 	Less 	Than 	Fair 	Value, 	at
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23, 	A-583-853,(Dec. 	15, 	2014). 	Thus, 	the 	ITC 	was 	bound 	by
Commerce’s determination and tasked with examining whether imports
from 	Taiwan, 	including 	modules 	from 	Mexico, 	were 	negligible. 	See
USEC, 34 Fed.Appx. at 730. 	Accordingly, the ITC correctly declined
to 	conduct 	a 	separate 	negligibility 	analysis 	with 	Mexico 	as 	the
country of origin.
According 	to 	data 	available 	for 	the 	most 	recent 	twelve
month period prior to the filing of the petitions, subject imports
of CSPV products from Taiwan were [[ 	]]% of total CSPV imports
and subject imports from China were [[ 	]]% of total CSPV imports.
Def.’s 	App. 	Prehearing 	Br. 	of 	Taiwan 	Photovoltaic 	Industry
Association at Ex. 7, Dec. 1, 2014, ECF No. 41. 	Ostensibly, these
figures 	exceed 	the 	3% 	and 	7% 	thresholds. 	19 	U.S.C. 	§
1677(24)(A)(i),(ii). 	Therefore, 	the 	Commission 	reasonably
concluded that the imports were not negligible.
3. Conclusion
For 	the 	foregoing 	reasons, 	the 	court 	denies 	the
Plaintiff’s 	motion 	and 	affirms 	the 	ITC 	Injury 	Determination 	and
ITC Decision. 	Judgment will enter accordingly.
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/s/ 	Nicholas Tsoucalas
Nicholas Tsoucalas
Senior Judge
Dated:
New York, New York
December 7, 2015
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